How Muslim Extremists Can Learn From Larry Flynt

By Stephen L. Carter -
Sep 20, 2012

So now it’s the French who are
frantically closing their embassies, worried about violent mobs
enraged after the satirical magazine Charlie Hebdo published
cartoons, some of them pornographic, mocking the Prophet
Muhammad.

France’s official response has been more restrained than
last week’s raft of apologies from the U.S. government after
violence blamed on the incendiary video “Innocence of Muslims”
swept across the Middle East, leading to attacks at U.S.
diplomatic outposts and the death of four U.S. diplomats. But
some commentators argue that if speech makes people angry enough
to do terrible things -- like murder -- we should consider ways
to restrain it.

In light of this swirling argument, and the swirling
violence that influences it, we should take a moment to consider
what it is that makes free speech so valuable, and its
suppression so dangerous. This is a moment not to yield to
demands for censorship, but to defend and even celebrate the
freedoms that the makers of the video and the cartoons so
grossly abuse.

A useful place to start is Dworkin v. L.F.P. Inc., a nearly
forgotten defamation ruling issued by the Supreme Court of
Wyoming 20 years ago this week. The case involved a Hustler
magazine article attacking anti-pornography crusader Andrea Dworkin. The article called her a number of filthy names, and
went on to contend that Dworkin “advocates bestiality, incest
and sex with children.” She sued, claiming defamation. She lost.

Outrageous Distortions

The Hustler article may have grossly distorted her ideas,
the court wrote, but the First Amendment protects the right even
of so scurrilous a magazine to publish so scurrilous an article
about so public a figure: “Ludicrous statements are much less
insidious and debilitating than falsities that bear the ring of
truth. We have little doubt that the outrageous and the
outlandish will be recognized for what they are.”

The article was trash. The article was false. The article
was inflammatory. Dworkin’s outrage was entirely justified. But
the court reached the right result. Dworkin was a public figure,
said the court, and therefore even so unsympathetic a defendant
as Larry Flynt, Hustler’s publisher, had the right to make
absurd assertions about her beliefs, and to engage in hyperbole
intended to hold her up to ridicule.

The best statement of our constitutional rule remains the
one announced by the U.S. Supreme Court 40 years ago in Police
Department of the City of Chicago v. Mosley: “To permit the
continued building of our politics and culture, and to assure
self-fulfillment for each individual, our people are guaranteed
the right to express any thought, free from government
censorship.” The government, said the court, “has no power to
restrict expression because of its message, its ideas, its
subject matter, or its content.”

That’s why the American Nazi Party couldn’t be prevented
from marching in Skokie, Illinois, in 1977. That’s why the
members of Westboro Baptist Church were free to picket the
funeral of Lance Corporal Matthew Snyder in 2006. That’s why
protesters have the right to burn the U.S. flag.

None of these actions is admirable. What’s admirable is the
broad respect for liberty that protects them.

Of course, there are exceptions. But they don’t apply here.
For instance, a remarkable number of commentators, borrowing
from Justice Oliver Wendell Holmes, have compared the “Innocence
of Muslims” video to falsely shouting fire in a crowded theater.
Others have drawn analogies to Brandenburg v. Ohio, the 1969
case in which the Supreme Court suggested (“held” would
egregiously overstate the case) the possibility that speech
directed to inciting and likely to incite “imminent lawless
action” might not be protected under the First Amendment.

Dangerous Arguments

These are dangerous arguments. Consider how we would
respond if an anti-abortion group were so furious at a pro-
choice film that it blew up the theater. I very much doubt that
we would be accusing the filmmakers of incitement, even if they
knew in advance that the terrorists were lurking.

One might object that there is a difference between
insulting an individual and insulting a religion. There is
indeed -- and our sympathies should be with the individual.
Followers of a religion can turn to their fellow believers for
solace. Often, they can turn to a tradition that has survived
centuries or millenniums of mockery and abuse. Believers don’t
turn from God because God has been mocked; they turn from the
mocker.

The individual, by contrast, must bear the insults. The
more public the individual is, the greater the abuse that the
Constitution allows us to heap on his or her shoulders. The cost
of freedom is indeed terrible. But the cost of restrictions on
that freedom is more terrible still.

That a video or a cartoon offends many devout Muslims is
surely a fact, but it isn’t an argument. I frequently hear the
Lord’s name taken in vain. For some of us, the name of God
remains sacred, and hearing it profaned is painful. But the
First Amendment wisely denies us legal recourse. (That’s why the
Obama administration was wrong -- very wrong -- even to ask
YouTube, which hosts the video, to “review whether it violates
their terms of use.” A chill is a chill.)

In the U.S., we routinely deride religions. We make best-
sellers of books launching often-uninformed attacks on the very
idea of God, and give rave reviews to a Broadway show making
crude mockery of Mormonism. The insensitivity and boorishness of
those who enjoy attacking the faith of others does not strip
them of their rights of freedom of expression.

Now, one must reasonably ask whether we would be a better
country if we were more restrained. The philosopher Michael Sandel in particular has asserted that our freedoms are
vindicated in our ability to restrain rather than indulge our
urges. This is a fair point, and a correct one. In the manner
and multitude of our self-expression, we are growing more
childlike, not more mature. That failing, however, lies in our
collective character, not in our respect for liberty.

Absolute Defenses

I have said before that I am a near-absolutist on the
subject of free speech. I defend the right of imbeciles to
express themselves in ways that are offensive and wounding to
people who have done nothing to deserve it. Naturally one would
prefer to defend free speech in the name of such once-banned
classics as “Ulysses” and “1984.” One would prefer to defend a
free press that is ferreting out the Pentagon Papers.

Those opportunities rarely arise. If our culture instead
produces offensive junk, then that is where the ramparts must be
built -- not because offensive junk is a positive good, but
because the power to censor is far too dangerous to be placed in
the hands of government.

(Some observers have pointed out, correctly, that even if
the U.S. government can’t censor the video, Google Inc. (GOOG), owner
of YouTube, is a private corporation and can do as it likes.
Given Google’s size, and YouTube’s ubiquity, I am wary of
endorsing any call for a crackdown.)

When we remember the periods of censorship in our history,
we remember them, as we should, with embarrassment. There are
censors today -- Dworkin herself, who died in 2005 and wrote
such brilliant, cutting prose, was often among them -- and the
impulse is always tempting. Words and images do wound. Wounds
untended do fester. But aside from simply turning away, the only
antidote the Constitution allows is arguing back -- in short,
more speech.

In much of the world, governments have taken on the
responsibility of protecting their people from unpleasant
images. In the U.S., we have gone a different way, choosing a
more genuine freedom of speech. But speech is only free if we
protect it when we hate it.

(Stephen L. Carter is a Bloomberg View columnist and a
professor of law at Yale University. He is the author of “The
Violence of Peace: America’s Wars in the Age of Obama,” and his
most recent novel is “The Impeachment of Abraham Lincoln.” The
opinions expressed are his own.)